Interview: the purpose is to know the truth

Factors to consider:

1. Inherent plausibility

o Is it believable, realistic or possibly true?

o Is it based on experience and credibility?

The person including utterances from him must be credible

It must be
consistent with human experience, knowledge and human nature.

Inconsistencies:

Minor inconsistencies

There is really no issue. It does not really affect the credibility of person.

It is considered as badges of truth, because it shows that it is not

rehearsed

Material inconsistencies

Very important point to consider because statements are

contradicting each other.

2. Demeanor of the client

o Eye contact

o The tone of the voice

 o How he answers the question

o Body language and the like.

Assessment made by the trial court of the witness demeanor is normally

upheld by the SC. This is because the trial court had a first-hand
experience in observing the demeanor of the witness.

3. Motive to falsify

Look into the following:

o Envious feelings or jealousy

o History
o An event in the past like transaction or executions of contracts
o Any relevant relationship

4. Is it capable of corroboration

Witnesses and evidence: consistent with what is shared and narrated by

the client to establish truth

5. Past record

o Of clients and witnesses

o Other lawyer consulted

o Other involvements: such as being a complainant or defendant in another case.

Planning: to ask the right questions, and the order of asking of questions

1. Familiarity of the cases to be handled, particularly in the facts of the case.

2. Research or review the applicable, relevant, and related laws as well as jurisprudence.
 BASIC POINTERS IN EVIDENCE

1. An accused is presumed innocent

2. Guilt must be established by proof beyond reasonable doubt
3. The prosecution must rely on the strength of its own evidence
4. The prosecution must prove every element of the crime
5. The prosecution must prove the identity of the perpetrators
6. Weakness or absence of defense evidence immaterial
7. Strong suspicion or possibility of guilt is not sufficient
8. All doubts must be resolved in favor of the accused
9. Cases are decided on the basis of evidence

Meaning of Evidence

The means, sanctioned by the rules, of ascertaining in a judicial proceeding the truth
respecting a matter of fact.

An alleged matter of fact

Its truth is in issue
Means sanctioned by the rules

Admissibility of Evidence

Relevant / Material Evidence

o Tendency in reason to establish the probability or improbability of a fact in issue
o Tendency to throw light on the issue
o Relates directly to a fact in issue as to induce belief in its existence or non-
existence

Competent Evidence
o Allowed by the rules
o Not excluded by law

Kinds of Evidence

1. OBJECT / REAL EVIDENCE

o That which is addressed to the senses of the court (Sec.1, Rule 130)
o Exhibited to be examined or viewed by the court

Physical evidence is an evidence of the highest order it speaks more eloquently

than a hundred witnesses.
2. DOCUMENTARY EVIDENCE
o Consists of writings or any material containing letters, words, numbers, figures,
o symbols or other modes of written expressions offered as proof of their contents
(Sec. 2, Rule 130)
A signed carbon copy is a duplicate original wh i c h m a y b e introduced in
evidence w i t h o u t h a v i n g t o produce the original.
Public documents should be given f u l l f a i t h and credit.
Baptismal certificates are private documents. They are not considered as
prima facie evidence of the fact that gave rise to their execution, that is, the
fact of baptism and the date thereof, unless the priest who performed the
baptismal rites and made the certificate is produced.
Baptismal certificates are not sufficient to prove paternity. It is not proof of
the veracity of t h e d e c l a r a t i o n s a n d statements in the certificate
concerning the relationship of the person baptized.

3. TESTIMONIAL EVIDENCE
o Testimony of a witness given in court
o All persons who can perceive, and perceiving, can make known their perception
to others, may be witnesses (Sec. 20, Rule 130)

Testimony Confined to Personal Knowledge

A witness can testify only to those facts which he knows of his personal
knowledge
Those derived from his own perception (Sec. 36, Rule 130)

A deaf and dumb person may testify in any manner satisfactory to the
court, by writing or s i g n s t h r o u g h a n interpreter.
A feebleminded complainant in a rape is competent witness as long as
she can convey her ideas by words or signs and give sufficiently
intelligent answers.
It is universally accepted that intellectual weakness, no matter what form
it assumes, is not a valid objection to the competency of a witness so
long as he can still give a fairly intelligent and reasonable narrative of the
matter testified to.
That a person is a mental retardate does not disqualify her as a witness
nor render her testimony bereft of truth.
Findings of trial court on the credibility of witnesses deserve a high
degree of respect since it had the opportunity to observe the witnesses
during their testimony. Exception is when the trial court ignored,
misconstrued, or misinterpreted facts and circumstances which, if
considered, would alter the outcome of the case.
Absent any evidence showing any reason or motive for the witnesses to
prevaricate, the logical conclusion is that no such improper motive exists,
and their testimonies are worthy of full faith and credit
 Inconsistencies as to minor details and collateral matters do not affect
the credibility of the witnesses nor the veracity of the weight of their
testimonies.
Inconsistencies on minor and trivial matters only serve to strengthen
rather than weaken the credibility of witnesses for they erase the
suspicion of rehearsed testimony.
The accused may be convicted on the basis of the testimony of a single
witness as long as it is positive and credible

Hearsay evidence Excluded

Evidence not of what the witness knows himself but of what he has heard from
others
An affidavit is hearsay without the affiant being presented in court. Thus, the
affidavit of a person who did not testify in court cannot be admitted in evidence.
Accused enjoys the right of being confronted with the witnesses testifying
against him and to cross-examine them

Exceptions to the Hearsay Rule

1. Dying Declaration
a. Declaration of a dying person
b. Made under consciousness of an impending death
c. His death is the subject of inquiry
d. Declaration relates to facts/ circumstances of his death
e. He eventually dies

A dying declaration is highly reliable, having been made in extremity

when the declarant is at the point of death and when any hope of
survival is gone, when every motive to falsehood is silenced, and
when the mind is induced by the most powerful considerations to
speak the truth.

2. Res Gestae
a. Startling occurrence
b. Statement made while startling occurrence is taking place, or
immediately prior or subsequent thereto
c. Statement relates to the circumstances of the startling occurrence
d. Statement is spontaneous

3. Independently Relevant Statements

Statements offered in evidence only to prove the tenor thereof, not to
prove the truth of the facts asserted therein.
They include statements which are the very facts in issue or those which
are circumstantial evidence thereof.

4. Disqualification by Reason of Marriage

 o Neither husband nor wife may testify for or against the other without the
consent of the affected spouse (Sec. 24, Rule 130)
o EXCEPT in a crime committed by one spouse against the other, or the
latters direct descendants or ascendants
o The wife may testify against her husband in a criminal case for the rape
of their daughter. It is a crime against the wife and directly attacks or
virtually impairs their conjugal relation.

5. Parental and Filial Privilege

o No person may be compelled to testify against his parents, other
direct ascendants, children or other direct descendants (Sec. 25,
Rule 130)

EYEWITNESSES
Victim/s
Witness/es

Factors in Eyewitness Identification

1. PERCEPTION
2. MEMORY
3. COMMUNICATION
4. CANDOR

The innate differences in man make each one unique by himself mans actions and
reactions cannot be stereotyped.

For testimonial evidence to be believed, it must not only proceed from the mouth of a
credible witness but must be credible in itself such that a common experience and
observation of mankind leas to the interference of its probability under the circumstance

1. PERCEPTION

Does he know the perpetrator?

a relative, friend, neighbour
officemate, classmate
a familiar face
an acquaintance
a stranger (race, tribe, language)

Did he have sufficient time to view or listen to the perpetrator?

What was his focus of attention while the crime was being committed?
Where was he in relation to the perpetrator?
How near or far was he from the perpetrator?
What time was the crime committed?
If night time, how was the condition of visibility?
 Split-second illumination by a flash of lightning could suffice to confirm
identification of the perpetrator
Kerosene lamp, flashlight, moonlight, or starlight may, in proper situation, be
considered sufficient illumination
If the light from the stars or the moon can give ample illumination to enable a
person to identify or recognize another, then the illumination from the electric
post may be sufficient for the witness who was near the crime scene to
enable him to recognize the accused.
When conditions of visibility are favorable and the witnesses do not appear
to be biased, their assertion as to the identity of the malefactor should
normally be accepted

How good was the eyewitness vision or hearing ability?

A persons voice is an acceptable means of identification where it is established
that the witness and the accused knew each other personally and closely for a
number of years

What was his condition physically, mentally, emotionally and psychologically?

What are the distinguishing descriptions, features or marks of the perpetrator?
What was the apparel of the perpetrator?
Was the perpetrator in disguise?

Alibi is weak if the accused is positively identified and it is not physically impossible for
him to commit the crime.
All things being equal, positive evidence prevails over negative evidence; written
evidence over oral evidence; and public documents over private writings.

2. MEMORY

Age; degree of understanding

Education; training
Condition of the mind
Memories become distorted and dim with passage of time
Memories are capable of being fused (mixed-up memory)
Memories are susceptible to suggestions and influence
Memory can be treacherous. The march of time is truth in flight.
A truth-telling witness is not always expected to give an error free testimony,
considering the lapse of time and the treachery of human memory.

I would sooner trust the smallest slip of paper for the truth than the strongest and
most retentive memory ever bestowed on mortal man. (Judge Limpkin of Georgia)
 3. COMMUNICATION

Ability of witness to describe the event or person he has seen in a manner that
converts his memorys image into language that is converted into an image in the
receptors mind
There can be an honest distortion depending on the ability of the witness to
articulate descriptive facts

4. CANDOR
How honest is the witness?
Honest mistake
Motive

Falsus in uno, falsus in omnibus

o Where a witness has wilfully falsified the truth on one point, his entire
testimony may be disregarded, although the court in its discretion may
believe a testimony in part and disbelieve it in part.
o Courts may or may not draw the inference, depending on circumstances,
such as, the corroborative evidence, the probabilities and improbabilities of
the case, the general character of the witness, his manner and demeanor on
the stand, his intelligence and means of knowledge, and his willingness to
speak the truth.
o Courts may believe one part of the testimony of a witnesses and disbelieve
other parts
o Depending on its inherent credibility or the corroborative evidence in the
record.

Totality of Circumstances Test

1. The opportunity of the witness to view the perpetrator.
2. The witness degree of attention
3. The accuracy of any prior description given by the witness
4. The level of certainty shown by the witness of his identification
5. The length of time between the crime and the identification
6. The suggestiveness of the identification procedure

Sworn Statement / Affidavit

o Generally considered inferior to testimony in court.
o Discrepancies or inconsistencies between a witness affidavit and testimony do not
necessarily impair his credibility as affidavits are taken ex parte and are often
incomplete or inaccurate for lack of or absence of searching inquiries by the
investigating officer.
CONFESSIONS and ADMISSIONS

CONFESSIONS
Declaration of an accused acknowledging his guilt of the offense charged or any
offense necessarily included therein
Direct / positive acknowledgment of guilt, not implied

1. Judicial Confession
Plea of guilty to a criminal offense on arraignment

2. Extrajudicial Confession
Confession made elsewhere than before the court.

Constitutional Provisions on Confession

Section 12, Article III, 1987 Constitution

1. The right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

2. No torture, force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado,
or other similar forms of detention are prohibited.

3. Any confession or admission obtained in violation of this or Section 17 hereof shall be

inadmissible in evidence against him.

Section 17, Article III, 1987 Constitution

No person shall be compelled to be a witness against himself.

Instances that fall under the Right against Self-Incrimination

1. Procuring handwriting specimen

Writing is something more than moving the body, or the hands, or the fingers;
writing is not purely mechanical act, because it requires the application of
intelligence and attention

2. Production of inculpatory documents

A person cannot be compelled to produce letter or other documents in his
possession which forms a link in the chain of incriminating circumstances

3. Forced re-enactment
 Right includes not only protection against testimonial compulsion but any
evidence communicative innature acquired under circumstances of duress

Mechanical Acts Not Included

Blood / substance extraction for testing
Pregnancy test
Footprinting test
Fingerprinting test
Removal of shoes for comparison with tracks
Putting of feet over tracks
Putting on of clothes / shoes to determine ownership
Physical/medical examination
Police line-up

ADMISSIONS
Act, declaration or omission of party as to relevant facts
Acknowledgment or assent of the existence of certain relevant facts
Written, oral, or by conduct

Admission by Silence
An act or declaration made in the presence and within the hearing or
observation of a party who does or says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and when proper and possible for him
to do so, may be given in evidence against him (Sec. 32, Rule 130)

Offer of Compromise
Except those involving quasi offenses(criminal negligence) or those allowed by
law to be compromised, an offer of compromise by the accused may be received in
evidenced as an implied admission of guilty (Sec. 27, Rule 130)

Admission Confession
Statement of fact which does not directly Acknowledgment of guilt or liability
involve an acknowledgment of guilt or liability
Express or implied Express
May be made by third persons Made by party himself